Insight Volume 10 Num 1  January 2008  Global standards policy and strategic developments.   Subscribe to GTW Insight 

Standards Matters at WTO; Intellectual Property Rights Antitrust and Standards;  International Standards Policy; US National Standards Policy; Regional Standards Policy; Conformity Assessment Policy;  Management System Issues;  Excerpts from the Database of Federal Register notices;   Moving on, Moving In;  Do you wonder Why?  Words to Ponder

Standards Matters at WTO  

The WTO Committee on Technical Barriers to Trade held three regional workshops on Technical Barriers to trade in 2007 

Many trade concerns were raised at the TBT committee in Geneva meeting 5 July 2007.  These included  issues such as draft Dutch and Belgian laws on trade in seal products; pollution control policies for electronic information products in China; country of origin labelling in the United States; draft composition standards for cheese in Canada; labelling of snack foods in Thailand; and an EC regulation dealing with the Registration, Evaluation and Authorisation of Chemicals (REACH). 

The TBT committee continued in November 2007 to discuss chemical regulations among a wide range of new and previously-raised trade concerns  This followed two days of discussions on various aspects of transparency and information exchange.

There is to be a TBT workshop on Good Regulatory Practice March 2008. 

One of the  most significant  recent tangible products  of the TBT committee  was the  Fourth Triennial Review of the Agreement. (Contact GTW for copy)  approved at  the November 9, 2006 meeting.  The elements considered during the Review and decisions and recommendations adopted by the Committee were:  (A.) Implementation and Administration of the Agreement; (B.) Good Regulatory Practice;  (C.) Conformity Assessment Procedures;  (D.) Transparency;  (E.)  Technical Assistance;  and, (F.) Special and Differential Treatment.

Another key reference  is the WTO report, WTO Trade Policy Review: United States - A Largely Open Economy but Barriers Persist in Important Areas  issued on January 14, 2004. The report along with a policy statement by the Government of the United States, was the subject  for the seventh Trade Policy Review (TPR) of the United States by the Trade Policy Review Body of the WTO on 14 and 16 January 2004.

On July 29, 2003 Peru and the European Commission concluded a dispute fundamentally based on obligations of  the Agreement on Technical Barriers To Trade.  (GTW Proprietary Content) This is a precedential case concerning the obligations of parties to the agreement on technical barriers to trade to use International Standards.

  Intellectual Property Rights Antitrust and Standards 

In April 2007 the  U.S. Department of Justice ("DOJ") and Federal Trade Commission ("FTC") issued  their report on Antitrust Enforcement and Intellectual Property Rights. The report contained a chapter on standards setting.

Three ANSI committees address  intellectual property related policy.   The ANSI IPR policy committee; the ANSI patent group: and the ANSI copyright group.  One of the key developments in 2007 was approval by the patent group; the IPR policy committee; and other relevant ANSI oversight groups of 1) a revised ANSI Patent policy  that will be incorporated into the 2008 version of the ANSI Essential Requirements:  Due process requirements for American National Standards and 2) revised Guidelines for Implementation of the ANSI Patent Policy to reflect the  approved and revised ANSI Patent Policy. GTW Associates has reviewed the  ANSI patent policy wording changes from the earliest ANSI records through the 2007  Patent policy  and has interpreted the implications and significance of the changes for standards developing organizations and for attestations from patent holders to the evolving wording of the  ANSI patent policy.  (Contact GTW)  

The IEEE-USA opposed the Patent Reform Act of 2007.  In letters to the Senate and House prepared by the Intellectual Property Rights Committee, IEEE-USA stated:  We believe that much of the legislation is a disincentive to inventiveness, and stifles new businesses and job growth by threatening the financial rewards available to innovators in U.S. industry. Passage of the current patent reform bill language would only serve to relax the very laws designed to protect American innovators and prevent infringement of their ideas....

The American Bar Association Committee on Technical Standardization within the Section of Science and Technology Law completed in 2007 the Standards Development Patent Policy Manual  The Introduction states what is a key challenge in creating a patent policy for a standards development organizations: Thus the challenge for each SDO is to develop an inclusive patent policy that encourages all patent holders to join and balances the interests of all its stakeholders: (1) those that contribute patented technology to the development activity, (2) those that make and sell products, and (3) those that use products that incorporate the standardized technology. (Contact GTW)  

In a strategic 2007 global standards policy accomplishment, ISO and IEC and ITU agreed in  on a Common Patent Policy for ITU-T/ITU-R/ISO/IEC  The ISO/IEC/ITU commom patent policy states: The following is a "code of practice" regarding patents covering, in varying degrees, the subject matters of ITU-T Recommendations, ITU-R Recommendations, ISO deliverables and IEC deliverables (for the purpose of this document, ITU-T and ITU-R Recommendations are referred to as “Recommendations”, ISO deliverables and IEC deliverables are referred to as “Deliverables”).
The rules of the "code of practice" are simple and straightforward. Recommendations | Deliverables are drawn up by technical and not patent experts; thus, they may not necessarily be very familiar with the complex international legal situation of intellectual property rights such as patents, etc. Also agreed were Guidelines for Implementation of the Common Patent Policy for ITU-T/ITU-R/ISO/IEC  and a  Patent Statement and Licensing Declaration of ITU-T/ITU-R Recommendation | ISO/IEC Deliverable

ANSI SEEKS COMMENTS ON PROPOSAL FOR PATENT VALUATION STANDARD The Deutsches Institut fur Normung (DIN) has submitted a proposal to ISO for a new work item on monetary patent valuation.  Interested parties are invited to review the proposal and submit comments by January 31, 2008.

In October 2006 the DOJ issued a Business Review letter to VITA concering the VITA proposed patent policy to require that patent holders make early disclosures of patents and patent applications that may be essential  and to require that patent holders declare the maximum royalty rate and most restrictive non-price licensing terms they will require from those who must take a patent license in order to implement the eventual VITA standard.  The Department of Justice announced  that it will not oppose the proposal.

In April 2007 the DOJ issued its Business review letter to IEEE expressing  enforcement intentions regarding a proposed IEEE patent policy to give holders of patents essential to IEEE standards the option of publicly committing to the most restrictive licensing terms they would offer. The Department said that the proposed policy may enable IEEE to make better informed decisions when formulating standards that will benefit consumers. The policy will allow patent holders to commit publicly to specific restrictions on their future licensing terms and conditions for the use of patents that are essential to IEEE standards. 

Peer-to-Patent, the USPTO's pilot program for public participation in the review of patent applications, posted 3 new applications for public review at www.peertopatent.org 

A new resource by  GTW  is an  inventory and text of more than 100   Department of Justice business review letters applicable to IPR in standards setting;  conduct of standards setting and Association management programs  dating to 1968  and   ADVISORY OPINIONs AT THE FEDERAL TRADE COMMISSION   applicable to Standards setting organizations  dating to 1971. 

The IGF Dynamic Coalition on Standards  organized several standards policy events in  Rio Monday and Tuesday November 11 & 12, 2007.  One was 
The intersection of open ICT standards, development, and public policy  Another was Open ICT Standards for Greater Citizen Access: Best practices in government policy and procurement practices  Following an email report of the Rio events by a representative of the DCOS, a representative of the Business Software Alliance  offered a different point of view. There is to be continued  dialog between the DCOS and BSA. 

The US Federal Communications Commission (FCC) is one of only two 
United States  regulatory agencies  with a patent policy applicable to regulation setting [3 F.C.C. 2d   Revised Patent Procedures of the Federal Communications Commission ] For example, last August the FCC issued a Federal Register notice   taking the next step in implementing a mandatory standard for digital radio broadcasting. In paragraph 101 the FCC  mentions its interest in the royalties the patent holder iBiquity will ask of the broadcaster licensees from FCC. One of the current patent & standards licensing controversies in the US has to do with the FCC standard for HDTV which will become mandatory in 2009.  Recently a company began to request licenses  from  businesses to use patented technology  the company asserts is necessary to practice the HDTV standard.  [The second regulatory agency with such a policy  is the EPA Mandatory Patent Licenses Under Section 308 of the Clean Air Act ] 

International Standards Policy 

What is an "I"nternational Standards Organization? In a document "Using and Referencing ISO and IEC standards for technical regulations"  issued September 2007  the advantages and benefits of using and referencing ISO and IEC standards in technical regulations are stated : 

Standards from ISO and IEC have the advantage of a broad geographical reach. Both of these organizations have a membership made up of national members the world over. This geographical reach is combined with a multi-stakeholder environment which ensures the representation of a wealth of technical views including those relating to social and economic interests. Different perspectives come from the national level and through a network of liaisons and cooperation with international governmental and non-governmental organizations. Therefore, the value of International Standards from ISO and IEC is that they are recognized, accepted and implemented around the globe.

Regulators can save time and money by choosing ISO and IEC standards as solutions to policy and technical issues — solutions which have been agreed upon by a consensus reached with the involvement of all parties, including the regulators themselves.

In a February 2007 ASTM  Interview with American National Standards Institute President and CEO S. Joe Bhatia  Bhatia explained what it means when ANSI speaks of the “multiple path” approach to the development and use of international standards and how ANSI promotes this approach in the United States and globally:

The “multiple path” approach means that the source of a standard and the method used to develop it is generally less important than the standard’s functionality and level of acceptance.

In the U.S., each market sector decides for itself which standards best support its needs. Usually the guiding principle is that the standard must be technically suitable and able to be used throughout a given market sector worldwide. In contrast, policy makers in some nations have dictated that only specific standards bodies — often the International Organization for Standardization and the International Electrotechnical Commission — are the preferred path to achieve a global standard.

The multiple path approach is a key element of the United States Standards Strategy that was published in late 2005. As a leading advocate of the USSS, ANSI carries the multiple-path message forward to our counterparts around the world and to the regional and international standards bodies where we represent the United States.

US National Standards Policy  

The U.S. Toy Industry Association (TIA), in conjunction with the American National Standards Institute (ANSI) and a working group of safety experts and industry, government, and consumer leaders, announced  that a new safety assurance program for toys will be published for public review and comment on February 1, 2008. 

2006 / 2007 Annual Report of the American National Standards Institute

Regional Standards Policy  

Japan   

GTW Associates President Willingmyre met September  3 & 4 with standards officials within the Japanese  Ministry of Economy Trade and Industry  METI   (a GTW client) and Japan Fair Trade Commission JFTC;  National standards body ANSI partner JISC   and private standards bodies:  JSA;  TTC   &  ARIB.  METI is studying implications for standards setting in Japan of the evolving Intellectual property rights policies among global standards setting organizations.  Associate Professor Masako  Wakui (and the Mitsubishi Research Institute, Inc) have begun  comparative studies of "IPR in standards" situations in the US and Europe

JFTC   has issued JFTC Guidelines on Standardization and Patent Pool
Arrangements(2005)  and  JFTC Draft IPR Guidelines (May 2007)  with implications for standards

Asia Pacific

GTW continued to support the Royal Embassy of Thailand through workshops on US Standards and Conformity Assessment held in Bangkok.  Two workshops in 2007   (agenda from workshop August 2007) followed two previous events in 2006 (images and agenda  from workshop in August 2006)

China will create 10,000 new standards to meet the standard vacuum in certain fields in 2008. Meanwhile, some 11,000 outdated national standards will be revised, the Standardization Administration chief Liu Pingjun said December 19 at a national working conference on the adoption of international standards. He also stressed leading enterprises should make breakthroughs in key areas and strive to allow Chinese standards to serve as the worldwide accepted standard.

Europe

2007 European Union Report UNITED STATES BARRIERS TO TRADE AND INVESTMENT FOR 2006 issued February 2007 states that regulatory barriers are increasingly recognised as significant impediments to trade and investment between the EU and the U.S. A particular problem in the U.S. is the relatively low level of use, or even awareness, of standards set by international standardising bodies

The European Commission will convene an open meeting in Brussels on 12 February 2008 on "European ICT standardisation policy at a crossroad: A new direction for global success".  A consultant's report called attention to  meaning of  "open standard"  and noted  advocacy of the free availability of
standards. The report identified  IETF and W3c and Oasis as organizations important to EU interests.

Conformity Assessment Policy

H.R.1 Public Law 110-53 Implementing Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121 Stat. 266; 285 pages) TITLE IX--PRIVATE SECTOR PREPAREDNESS calls for the Department of Homeland Security to: ... begin supporting the development and updating, as necessary, of voluntary preparedness standards through appropriate organizations that coordinate or facilitate the development and use of voluntary consensus standards and voluntary consensus standards development organizations; and ...develop and promote a program to certify the preparedness of private sector entities that voluntarily choose to seek certification under the program.

The ANSI-ASQ National Accreditation Board (ANAB) announced September 25 its acquisition of Assured Calibration and Laboratory Accreditation Select Services, LLC (ACLASS). As the U.S. accreditation body for management systems, ANAB broadens its range of conformity assessment services to include accreditation of testing and calibration laboratories, inspection bodies, and reference material producers.

Management Systems  

The ANSI Company member forum and the Industry Cooperation on Standards and Conformity Assessment (ICSCA)  will cooperate in convening a  Management System Standards Strategic Advisory Group Industry workshop Wednesday April 9 in Florida

Excerpts from the Database of  Federal Register Excerpts

Moving On, Moving In

Welcome to Jeff Weiss and Julia Doherty in the USTR  Office of Technical Barriers to Trade.   Jeff also currently serves as the designated federal officer for the U.S. Industry Trade Advisory Council 16 on Technical Barriers to Trade.  Best wishes to departed Suzanne Troje, previous Director of the office.

Vice President Ann Rollins departed Information Technology Industry Council

Ed Mikoski to Vice President, Standards of the Telecommunications Industry Association

  Do you wonder ?

Three Traits may be combined to describe  most any standards development process ... Fast; ... Low Cost; ...  High Quality.  Pick any two.  Anonymous standards career truism  Interdependence of Standards Development Characteristics George Willingmyre, February 2004 

Words to Ponder    

Found in  “The little Red Book” Quotations from Chairman Mao Tse Tung during  a trip to Beijing to participate in a US-China Roundtable

“In this world, things are complicated and are decided by many factors.  We should look at problems  from different aspects not from just one ...In studying a problem we must shun subjectivity, one sidedness and superficiality. To be subjective means not to look at problems objectively. To be one sided means not to look at problems all-sidedly…or it may be called seeing the part but not the whole, seeing the trees but not the forest. That way it is impossible to find the method for resolving a contradiction. To be superficial means to consider neither the characteristics of a contradiction in its totality nor the characteristics of each of its aspects; it means to deny the necessity for probing deeply into a thing and minutely studying the characteristics of its contradictions, but instead merely to look from afar and after glimpsing the rough outline immediately to try to resolve the contradictions (to answer a question, settle a dispute, handle work or direct a military operation)

This way of doing things is bound to lead to trouble…To be one sided and superficial is at the same time to be subjective. For all objective things are actually interconnected and are governed by inner laws, but instead of undertaking the task of reflecting things as they really are, some people only look at things one-sidedly or superficially and know neither their interconnections or their inner laws and so their method is subjectivist…. We must learn to look at problems all-sidedly, seeing the reverse as well as the obverse side of things. In given conditions bad things can lead to good results and a good thing to bad results.

Of two contradictory aspects, one must be principal; and the other secondary. The principal aspect is the one playing the leading role in the contradiction. The nature of a thing is determined mainly by the principal aspect of a contradiction, the aspect which has gained the dominant position. But this situation is not static; the principal and the non-principal aspects of a contradiction transform themselves into each other and the nature of  the thing changes accordingly

If in any process there are a number of contradictions, one of them must be the principal contradiction playing the leading and decisive role, while the rest occupy a secondary and subordinate position. In studying any complex process in which there are two or more contradictions we must devote every effort to finding its principal contradiction. Once this principal contradiction is grasped,  problems can be readily solved   

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